Accra: Articles 88(3) and (4) of the 1992 Constitution of Ghana grant the Attorney-General the authority to initiate, conduct, and discontinue criminal proceedings. This power to enter a nolle prosequi is recognised under sections 54 and 55 of the Criminal and Other Offences (Procedure) Act, traditionally protected from judicial interference.
According to Ghana Web, the case of Republic v Felicia Abrokwa established that a nolle prosequi by a State Attorney is presumed regular and not open to judicial review. Similarly, Republic v Adu Tutu Gyamfi affirmed this position. Legal scholar J A N Amissah noted the absence of prescribed conditions or obligations for explanations when exercising a nolle prosequi.
The Constitutional Review Committee's final recommendation suggests that the Attorney-General or any prosecutorial authority should not discontinue a prosecution without court approval. This recommendation challenges the traditional unilateral termination of prosecutions, seeking judicial scrutiny and approval before discontinuance.
The Government's position paper, dated 28 July 2026, rejects this recommendation, arguing that it imposes a fetter on the Attorney-General's discretion and indirectly compels disclosure of reasons, especially in sensitive cases. The Government contends that prosecutorial discretion should remain with the Attorney-General on a case-by-case basis.
However, this position should be scrutinised against the supremacy of the 1992 Constitution. Article 296 ensures public office holders are subject to judicial scrutiny. The case of Enekwa and Others v. KNUST highlighted that public functions are amenable to judicial review, emphasizing that public officers like the Attorney-General are accountable to judicial review if there is an abuse of power.
The constitutional foundation of judicial review is clear, as Article 141 provides the High Court with supervisory jurisdiction over lower courts and adjudicating authorities. Article 23 mandates administrative fairness, allowing those aggrieved by decisions to seek redress in court.
Article 296 requires public officers to act fairly, avoiding arbitrary, capricious, or biased actions, and to adhere to due process. This article further energizes Articles 23 and 141, ensuring accountability standards for public office holders like the Attorney-General.
Article 1(1) of the 1992 Constitution emphasizes that sovereignty resides in the people of Ghana, with governmental authority derived from them. This principle challenges the unrestricted power to discontinue criminal proceedings without reason or judicial scrutiny, questioning the accountability gap it creates.
Article 125(1) states that justice emanates from the people and shall be administered by an independent judiciary, highlighting the court's role once a prosecution has commenced. The question arises why a prosecutorial authority can unilaterally terminate proceedings before an independent judiciary without court approval.
The Constitutional Review Committee's recommendation offers a constitutionally coherent solution, ensuring judicial oversight without transferring prosecutorial authority to the judiciary. It recognizes the court's legitimate interest in preventing arbitrary termination of proceedings.
Article 1(2) asserts that the Constitution is the supreme law, overriding inconsistent common-law doctrines such as nolle prosequi. The common-law tradition may have historically justified the Attorney-General's power, but it cannot determine compatibility with Ghana's constitutional order.
The Government's argument that judicial leave would fetter the Attorney-General's discretion overlooks the distinction between oversight and substitution of discretion. Judicial oversight ensures consistency with law, the Constitution, and justice, without abolishing prosecutorial discretion.
Amissah's observation on the lack of a requirement to give reasons highlights an accountability issue. Without reasons or judicial approval, the accused, victim, court, and public lack a mechanism to assess the lawful exercise of power.
The Government's concern that judicial leave could indirectly compel disclosure in sensitive cases calls for carefully designed judicial procedures rather than rejecting oversight. The Constitution or Parliament could enact procedures for handling sensitive information, ensuring transparency without compromising security.
The main issue is not whether the Attorney-General should retain prosecutorial discretion but whether it should remain virtually absolute once a prosecution has commenced. The 1992 Constitution introduced a paradigm founded on popular sovereignty, equality, judicial independence, and accountability, providing a basis to reconsider the traditional nolle prosequi approach.
The Constitutional Review Committee's recommendation should not be dismissed due to its departure from common-law traditions. It aims to strengthen accountability without undermining prosecutorial discretion. Ghana's constitutional order is not static but subject to the supreme authority of the 1992 Constitution.
Ghanaians must consider whether a public officer should unilaterally terminate a prosecution before an independent court without judicial approval or a duty to provide reasons. The Committee's recommendation deserves constitutional consideration, while the Government's objection based on tradition and discretion preservation does not address Ghana's modern constitutional demands.
The recommendation to require court leave for discontinuing a prosecution should be retained as a safeguard against arbitrary or improper prosecutorial power exercise. It would ensure scrutiny by an independent court once the judicial process is invoked.
Some argue that courts cannot compel the Executive to prosecute, which protects the Attorney-General's constitutional responsibility. However, prosecutorial discretion is not immune from constitutional and judicial scrutiny. Courts should review the legality of power exercise, ensuring compliance with constitutional standards.
If conditions for nolle prosequi are prescribed, non-compliance should allow for judicial review. The court's oversight role ensures lawful exercise of public power, maintaining prosecutorial independence within legal bounds.
Reform is compelling when criminal proceedings have advanced, raising concerns about transparency, accountability, and public confidence. Statutory reasons for discontinuance would not undermine discretion but enhance constitutional accountability.
The Constitutional Review Committee's recommendations should strengthen prosecutorial independence, establishing protections against arbitrary authority exercise. The Attorney-General's discretion should align with constitutional standards, not justify power's own exercise.
Comparative approaches, like Kenya's, demonstrate that prosecutorial discretion can coexist with judicial scrutiny. Kenya's constitution requires court permission to discontinue prosecutions, offering transparency and accountability in prosecutorial decisions.
In Ghana, the emerging position supports reconsidering nolle prosequi. The Supreme Court's decision in Gregory Afoko v Attorney-General suggests that prosecutorial discretion, while executive, is not immune from constitutional scrutiny. The court's reasoning implies that bias, unfairness, or arbitrariness in discretion exercise may warrant judicial examination.
Recent decisions, such as Noah Ephraem Teteh Adamtey v Attorney-General, emphasize the solemn constitutional responsibility of nolle prosequi, highlighting the need for lawful, reasonable, and accountable exercise of power. Transparency and scrutiny by courts and the public are essential.
The current Attorney-General's practice of publicly explaining reasons for nolle prosequi represents a departure towards transparency, despite the lack of statutory obligation. Institutionalizing such transparency through reform is a principled step forward.
The Attorney-General's 11-member Constitutional Review Implementation Committee should retain and implement the Committee's proposal for court leave before discontinuing prosecutions. This reform aligns prosecutorial power with constitutional accountability, strengthening public trust in criminal justice and democratic governance.
Ghana's constitutional democracy must evolve beyond inherited traditions to uphold constitutional values. The proposed reform enhances prosecutorial accountability while preserving state interests and prosecutorial independence. It builds confidence in justice, trust in governance, and demonstrates the Constitution's adaptability to modern demands.